Scottish courts need to heed Lady Hale’s words on equality

First published by The Herald on 14 January 2020

WHEN the UK Supreme Court opened for business on October 1 2009 its 12-strong bench featured just one woman: Lady Brenda Hale.

When she retired as its president last week she was one of three but, with Lord Justice Hamblin stepping up to fill the vacancy, her departure has made a big dent in the court’s diversity stats. Indeed, having started off at eight per cent and risen to 25% following the appointment of Lady Black and Lady Arden, female representation on the court’s bench is now back down at 17%.

Does that matter? If Lady Hale rose to become the highest office holder in the court, and if she has left its bench with a higher proportion of female judges on it than when she joined it, is it important that that proportion has now fallen?

In a word, yes. As Lady Hale herself noted last year, it is vital for the judiciary to be diverse at all levels so the public can feel that those serving on the bench are “our judges” and not “beings from another planet”. In an interview to mark the centenary of the Sex Disqualification (Removal) Act – a piece of legislation that reversed laws that had until then prevented women from entering the professions – the then Supreme Court president said that as “we are all products of our background and our experiences”, diversity is good for the bench because it brings “different perspectives to the discussion”. Though the population at large is split 50/50 along gender lines, she reckoned that a 40/60 division in either direction would be the ideal balance for the courts to adhere to.

A look at one of Lady Hale’s best-known Supreme Court decisions gives an indication of what a female perspective can bring, with her leading judgment in the 2011 case Yemshaw v London Borough of Hounslow broadening the definition of domestic violence, paving the way for laws on coercive control to be enacted on both sides of the Border in the process. Though it is impossible to say whether a court whose bench was made up entirely of men would have reached the same decision, the fact that two men on the five-strong panel agreed with her while two dissented shows it is as likely as not that it wouldn’t have.

Notably, the Court of Appeal decision that the Supreme Court overturned had been handed down by three men, all of whom agreed with the ruling made by the male judge who presided over the original case in Brentford County Court. Not one of them may have been able to get to grips with the concept of women being subjected to non-physical male violence, but Lady Hale was, and very many women will have been offered a lifeline because of it.

It is understandable, then, that feminist membership organisation Engender has raised concerns about the ongoing lack of gender diversity in the Scottish judiciary, with figures compiled for its latest Sex and Power report showing that on a proportional basis the number of female judges has actually fallen over the past three years. At the Court of Session, women account for just 26% of all senators, down from 29% in 2017, while the proportion of female sheriffs has fallen from 23% three years ago to 22% today.

Though the proportional changes are small, at a time when the Scottish Government’s legal affairs minister Ash Denham has urged the entire legal profession to do more to improve female representation at the senior end in particular, any reversal must be viewed with concern.

Indeed, while there is nothing to suggest that Scotland’s male judges are inherently or deliberately misogynistic, if their only lived experience is that of being a man in a society created by and for men then chances are their collective decisions – which have a bearing on all future decisions – are not going to take the female perspective into account.

That can never be a good thing. As Engender chief executive Emma Ritch told the Sunday National at the weekend: “From low conviction rates for sexual violence cases, to the shocking numbers of women placed on remand and then released without sentence, the criminal justice system repeatedly fails women and the overwhelming dominance of men in the judiciary cannot help but contribute to that.”

You only need look at the long line of non-violent female offenders locked up by sheriffs more used to incarcerating violence-prone men for proof of that. It is not too much of a stretch to suppose that if, as Lady Hale said, the introduction of different perspectives is good for overall judicial decision making, the opposite is true if those perspectives are narrowed, even by a small amount.

But the decline in female representation is not just disappointing because of the impact it could have on a judicial system that is still figuring out how to uphold women’s rights on the one hand and punish female offenders on the other; it is disappointing because it suggests – however microscopically – that the great strides made recently by women in the law could have stalled.

The profession may once have been a closed shop, but practically all the big law firms are now either led or co-led by women while Lorna Jack has been chief executive of the Law Society of Scotland since 2009, Lady Dorrian has been Lord Justice Clerk – the country’s second-most senior judge – since 2016, and Angela Grahame QC has been vice-dean of the Faculty of Advocates for close to four years, the second woman to hold the role after Valerie Stacey (now Outer House judge Lady Stacey).

If we ever want to get to a position where those working within that system are seen as being of the people rather than constituting “beings from another planet” then that momentum has to be built upon, not allowed to stagnate.

Gender only tells part of the story, of course, and there is still a long way to go before the judiciary can hope to reflect the communities it serves in terms of sexuality, ethnicity, socio-economic background or disability status. But as diversity breeds diversity it will have no hope of getting there unless and until Lady Hale’s ideal gender balance figure is achieved too. It is vital that we get there: she has shown us the difference that 8% can make, but just imagine what 50% could do.